Posted
by
samzenpus
on Wednesday March 18, 2009 @07:59PM
from the hassle-your-way-to-the-top dept.

Binestar writes "According to a PC World article, Google has submitted a brief to New Zealand about its proposed copyright law (section 92A). "In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.""

In a world where executives of companies that lose money expect as a matter of course to be paid millions of dollars of bonuses, it is a given that a tool such as the DMCA **WILL** be abused to silence opposition or competition...

In a world where executives of companies that lose money expect as a matter of course to be paid millions of dollars of bonuses, it is a given that a tool such as the DMCA **WILL** be abused to silence opposition or competition...

Which is why this needed to be pointed out to politicians who can't think ahead for themselves.

Everything. The award of big bonuses for nonperformance is evidence
of widespread moral and intellectual bankruptcy, which leads to other criminal
behaviour, such as the misuse of the DMCA to attack competitors, among other things.

"In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.""

57% are from businesses targeting competitors, and only 37% are invalid? What does that mean?
1.) That up to 20% of notices are from businesses who are catching their competitors in the act?
2.) Or is it not 37% of total notices?
3.) Or am I getting mixed up on something?

37% of total notices. The same people who go to the emergency room for belly button lint and call 911 when McDonald's is out of "chicken" mcnuggets probably file a DMCA letter at google when their friends draw a penis on their facebook wall.

That link you provide says that the ideal serving temperature for coffee is 155-175. So it appears that McDonald's was serving their coffee about 20 degrees above the recommended temperature if in fact they were serving the coffee at 185 degrees.

57% are from businesses targeting competitors, and only 37% are invalid?

That is indeed poorly phrased, but I think it was that a third of all notices were demonstratably invalid. That might be all from the 57% of competition, and the other %20 is highly questionable but not factually wrong.

Google probably didn't want to overstate anything, so that lobbyists would have nothing to prove wrong and convince lawmakers to ignore google completely. "They said all that 57% was invalid, but that's not true! We had one (coughalmostcough) get upheld in court a few years ago! They're l

The way I read it is this: 57% were companies trying to stifle competition, plus 37% of notices were not (valid) copyright claims. Note the emphasis. That means 37% of the claims were about things that had nothing whatsoever to do with copyright. Seems about right to me. The DMCA is so badly abused that it's not even funny....

Aha! I found the info here [usc.edu], through a link provided in someone else's comment. TFA is a bit off, it seems to me. The 37% figure is notices about sites outside America. And there were three other types of "flaws":

In this study, we traced the use of the Section 512 takedown process and considered how the usage patterns we found were likely to affect expression or other activities on the Internet. The second level of analysis grew out of the fact that we observed a surprisingly high incidence of flawed takedowns:

Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);

Notices to traditional ISP's included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an OSP can only honor by terminating the target's Internet access entirely); and

One out of 11 included significant statutory flaws that render the notice unusable (for example, failing to adequately identify infringing material).

In addition, we found some interesting patterns that do not, by themselves, indicate concern, but which are of concern when combined with the fact that one third of the notices depended on questionable claims:

Over half--57%--of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;

Over a third--37%--of the notices sent to Google targeted sites apparently outside the United States.

Actually the source in this case is from the TCF submissions [tcf.org.nz] to do with New Zealand's 3-strike law Section 92A [creativefreedom.org.nz].

Section 92A calls for internet disconnection based on accusations of copyright infringement without a trial and without any evidence held up to court scrutiny. There's no due process in this law, and it expands the definition of an ISP to include not just conventional ISPs but practically any shared internet connection or website -- meaning that libraries, schools, businesses, organisations are all now considered ISPs.

There is no way of abdictating responsibility to experts right now (Eg. the courts) and these new "ISPs" are expected to decide on claims of (1) data forensics and (2) copyright law. Further these new "ISPs" now act under the threat of being secondary copyright infingers because they allow infringement on their network. In practice it's all weighted against due process and fairness.

I'm from a group of artists against this law called the Creative Freedom Foundation [creativefreedom.org.nz]. This law was done in the name of protecting art and creativity but we don't want bad copyright law done in our name. As artists we're tryin to take care of society and what these ridiculous companies are pushing for. We ran a 'Blackout' campaign that was quite popular, and a Copywrong Song [creativefreedom.org.nz], and we've just launched a video series called What About Us? [creativefreedom.org.nz] with major NZ artists talking about how they don't want this law.

The have written the law the way they have for one main reason, proof. it is virtually impossible to prove that a particular person has conducted copyright infringement unless a major investigation is undertaken. This is all about a complete absence of evidence, about the editable records of copyright investigators (paid upon a commission basis) and ISPs (the records are used to justify $50 odd dollars per month payments not as substantiation of criminal activity).

There was a time when music was sold as sheet music. Somehow Joplin was making a $100,000 a week in the 1920's, even though it's fairly trivial to simply hand-copy someone-else's work.

I know I'm preaching to the choir on this one, but copyright law is increasingly working more against society than in its interests, and this story just goes to prove that yet again. When laws hurt more than they help, they need to be changed or abolished.

Not that I don't agree but your example doesn't take into account that now its fairly trivial to copy that sheet music and distribute it to thousands if not millions at no cost to the distributor in time or money.

True, but this is why we should rely on good studies.As it stand, it seems that, if anything, illegal online music distributors are helping sell music.10 years ago I thought the music industry would be dead by now because everything would be available for free. Weirdly counter intuitive, but there you go.

Have you ever copied sheet music by hand? It's a pain in the ass. So it's no surprise that in a time when a photocopier did not exist people would willingly pay a small amount to avoid that tedium. I know my high school almost got in trouble for photocopying sheet music. We spent a day in the music room pulling all the copies and tossing them in the garbage. The extreme high cost of sheet music during my school days was a major contributing factor in copyright infringement. Gee, where have I heard this before?

I find a huge amount of sadness in this, after hearing for years and people saying:KIDS! Learn music!

While the people producing sheet music reply: Only if you pay us one hundred, million dollars...

The sad thing in that, is part of the reason why the local middle school near me killed their music program. When I went through(more then 15yrs ago) everything was photocopied in some form. Now it only seems that the highschools have a music program which is a terrible shame, and even those are on the verge of dying for the same reason.

I know of a few preforming orchestra's here in Canada that are now dead due to the ever-ever-ever increasing costs of sheet music as well.

While the people producing sheet music reply: Only if you pay us one hundred, million dollars...

And this is for music that's been in the public domain for hundreds of years. Except they got a copyright on their arrangement. It's the exact same arrangement that Beethoven wrote, but somehow they could get a copyright on it and you'll get in trouble for duplicating it.

I was recently discussing the music copyright situation with my music teacher. We were looking at the copyright notice on the music book. Essentially, they were only selling a copy of the sheet music. They weren't actually selling the rights to play the music. Effectively, they were almost creating a misrepresentation case, in that why would you sell a music book to students, without giving them permission to play the music?

You might want to check the copyright notices. You might find that not only ar

57% were businesses targeting competitors. I take that to mean that they were trying to shut down their competitor's production/sales, rather than having a legitimate beef against a product.

That's a flawed interpretation, doesn't it make sense that a vast majority of claims were against competitors? If someone is breaching copyright on your products for commercial purposes, they are selling your product too, making them a competitor. That means that the other 43% are probably made up partially by the 37%, with the rest being valid claims against non-competitors, which to me says private entities (ie, not commercial ones).

I find it surprising that there aren't more claims against competitors,

There was a time when music was sold as sheet music. Somehow Joplin was making a $100,000 a week in the 1920's, even though it's fairly trivial to simply hand-copy someone-else's work.

Sheet music is cheaper than the cost of copying by hand. This doesn't mean that copyright laws were useless though -- without them, someone else could have set up their own printing press and started (cheaply) printing their own copies of Joplin's work.

Until recently, the only marginally profitable (in the economic sense) form of copyright violation was mass reproduction, requiring extensive capital costs. This made it easy to enforce copyright laws: You can't sell many thousands of copies of anything without attracting attention.

Everything changed when it became possible to make a profit by making a single illegal copy of something.

When laws hurt more than they help, they need to be changed or abolished.

Or in this case just not established in the first place. Thankfully the New Zealand Prime Minister has delayed the implementation of Section 92a and it may well be suspended.
A big thank you has to go out to all those who took part in the Internet Blackout NZ [creativefreedom.org.nz]... blacking out NZ websites and profiles on popular social networking sites in protest of the proposed changes.

Somehow Joplin was making a $100,000 a week in the 1920's, even though it's fairly trivial to simply hand-copy someone-else's work.

Funny, because Scott Joplin died in 1917.

Even if hand-copying ragtime sheet music were trivial, which it is not, it was still more convenient to spend the 5 cents on an officially published copy of 'Maple Leaf Rag' than it was to spend 2 cents on some blank staff paper and three hours transcribing a copy borrowed from a friend.

"The New Zealand Prime Minister, John Key, stated that the stronger copyright laws, including the controversial section 92a, were required for New Zealand to be able to negotiate a free trade agreement with America."

Intesting isn't it? I reckon if a whole lot of countries stopped pursuing free trade agreements with the US and instead pursued China and pegged their currencies to the Euro, the US would be jumping through hoops to woo back countries like New Zealand and Australia. It would be the end of draconian copyright laws and a whole bunch of other ills.

I just don't get why everyone is still dealing in the greenback given the financial crisis. Sure it used to be dangerous to switch to euros (think 1st gulf war dangerous) but these days, who cares? Especially if China and Europe benefit from a switch, it may even force the US to finally pull it's head in.

... but NZ politicians would still dearly love to get a FTA with the US. And the National government has already made clear [stuff.co.nz] that they would be willing to create new copyright laws specifically to get such a FTA -- just as Australia did.

It's probably got something to do with the fact that, despite all reasons to run screaming from the US, the US is still our number 2 trading partner. (Unless you count the EU as a single nation, of course.)

You need to follow up, and sadly most people don't want to bother. They would rather buckle then do the simple paperwork involved in rebutting a claim. If they do file, then person the sent the original DMCA goes away, and who want's to press charge at that point?well, I would but I'm not normal.

That's a good question. I think the penalty of perjury clause serves as a mild deterrent, and I think to an extent it does work. It takes a pretty dishonest person to sign on the dotted line, under the penalty of perjury, things to which the person is attesting falsely. Of course, that doesn't stop unscrupulous individuals who use the same logic - that the penalty is really not enforced.I don't hate the DMCA like the vast majority of/. members do. I think legitimate copyrights, trademarks and patents dese

That's a good question. I think the penalty of perjury clause serves as a mild deterrent, and I think to an extent it does work. It takes a pretty dishonest person to sign on the dotted line, under the penalty of perjury, things to which the person is attesting falsely.

The perjury clause is so useless as to be limited. I could send a DMCA request to anyone's provider, claiming that file X on their website infringed my copyright on work Y, and as long as I actually owned work Y, I would not have committed perjury -- even if I knew damn well file X had nothing to do with it.

Every once in a while my organization has to send out a DMCA take down notice against those who are using our trademarks to sell counterfeit merchandise.

Congratulations, your organization is a DMCA abuser. DMCA takedowns are for copyright violation, not trademark violation.

it is very helpful to have a method within the law for protecting ownership rights short of always involving lawyers at substantial and on-going costs

Indeed, it is helpful -- for abusers. The people abused, on the other hand, are shut down with no recourse other than to involve lawyers at substantial cost; the counternotice basically says "Meet me at high noon in Federal Court". Furthermore, if the abuser does sue, the DMCA provides the equivalent of an automatic restraining order, which, given the length of court cases, means the abuser essentially wins regardless of the outcome.

The perjury clause is so useless as to be limited. I could send a DMCA request to anyone's provider, claiming that file X on their website infringed my copyright on work Y, and as long as I actually owned work Y, I would not have committed perjury -- even if I knew damn well file X had nothing to do with it.

And if you did that you would not be able to confirm that the site in question actually was violating your copyright, and assuming the host wasn't incompetent your take down notice would be rejected. Unless I'm misreading the scenario you're depicting.

Congratulations, your organization is a DMCA abuser. DMCA takedowns are for copyright violation, not trademark violation.

Ah good catch. I will note, however, that all the instances to which I previously referred also were instances of copyright violations, and in addition, I think that most (if not all) service providers treat trademark violations in the same manner they treat c

And if you did that you would not be able to confirm that the site in question actually was violating your copyright, and assuming the host wasn't incompetent your take down notice would be rejected. Unless I'm misreading the scenario you're depicting.

The DMCA encourages (by providing safe harbor) the host to take the material down based on the takedown notice, even if the takedown notice is bogus. Some hosts check to see if it is sensible or not, most don't. My point is that there's no perjury provision

Gosh, it couldn't be that the notices are actually regarding the sale of counterfeit goods... counterfeit goods which would violate copyright.

Most goods aren't subject to copyright. That's why generic drugs exist - they can be patented, but once the patent expires, it's perfectly legal to sell your own copies. You just have to change the name and the packaging, in such a way that a reasonable person wouldn't be confused into thinking your product actually is the original product (that would be a trademark violation).

The DMCA notices I've seen only swear to be authorized to act on the copyright owner's behalf, and/or that there is an exclusive license which the alleged file sharer doesn't have. The details about IP addresses, protocols, and timestamps are (at best) represented as a "good faith belief." It's never been clear to me if those sending the notices are making any claim that the

Do you have a reference for your claim that the entire notice must be filed under penalty of perjury? I have some that are comple

I'm not sure if it is a statutory requirement or not; but the following language is extraordinarily common in DMCA takedown notices:

"I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

"(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

makes it sound as though the minimum requirements may be slightly looser. IANAL, though.

I'm not sure if it is a statutory requirement or not; but the following language is extraordinarily common in DMCA takedown notices:

"I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

It's common in part because Google's instructions [google.com] on how to submit a valid takedown notice tell you to write exactly that (section 6). Saves the lawyers on bot

>DMCA notices are filed under penalty of perjury. Has anybody, ever, even a single case,> been punished for filing a false takedown?

As I understand it, the perjury clause refers to the statement of the notifier that theyrepresent or are truly acting for the rights holder, not that what they claim is true. Ithink that only requires a "good faith" belief that the material they wish taken down isinfringing.

That's not the point. The point was that New Zealand was recently considering passing a silly law that would have had ISPs terminating people's accounts at the mere accusation of copyright infringement, supposedly because hardly anyone would make false claims simply to get innocent people cut off. Google is offering evidence to the contrary.

The content of the Google submission to TCF can be found here [tcf.org.nz]. Some of the other submission (including the Auckland District Law Society and the Radio New Zealand submissions) are worth a read.

I thought that google liked the DCMA as it protects them from lawsuits and other more extensive harassment. As it is now, all the have to do is take down the content. If this wasn't there they would be overrun with lawsuits. The only thing it seems to fight are things that might hurt it's ad business.

On every search page where they've removed results due to the DMCA, the following is placed (the only editing I have done is to the link that would link to the actual notice - it's different for each notice, but Chilling Effects doesn't always have the notice on file):

Linking there does not seem to be supportive of the DMCA. Chilling Effects is surprisingly neutral, given it's project by several law schools and the EFF, but it's far from blind supportiveness from what I can see.

(Disclaimer: I'm not a lawyer, nor am I American, so I may not know as much about this as someone else here.)

If these numbers turn out to be accurate, it shows rampant abuse of the DMCA-just like many of us predicted. It shows that over half the takedown notices are done for anti-competitive reasons and almost 40% of them are inaccurate and/or fradulent.

My fear is that-that any law that is put forth to replace (fix?) the DMCA's problems might well more Draconian then the DMCA itself. It's as if the bad known is better then the possibly worse unknown

the meaning of all kinds depends on the context, and can still be ambiguous.
eg the truck sold all kinds of ice-cream , does not mean it has every variety on the planet. However as far a biblical quotes are concerned its not really worth discussing further until you go to the original greek/hebrew etc:)

Good point. I never thought of things that way- it's just needless formatting. I mean, taking things one step further now, I guess it doesn't really matter if you don'thaveanyspacesatallinyoursentences.Iguessyoudo'n'treallyneedthoseafterall,orinfactorevenpunc.tuationatallorcapitallettersimeanallthecontentisthereandther.estisjustformattingdesignedtom'akethesentenceeasiertoreadandremoveambiguitiesbutimeanheyifyoucouldntbeboth-eredspendingthetypetypingoutyo.ursentenceaccuratelyandmakingiteasytoreadwhyshoulditakethetimetoreadit-

Edit: Even the filter won't let me post sentences like this without putting in some junk.

This is exactly how people used to write. The use of a punctuation marker between words didn't catch on in Latin until sometime between 600AD and 800AD. A lot of punctuation marks, and grammar in general, is a relatively recent fad.

It's beginning to look a lot like Christmas was our sign to get in the car and go shopping.

Oops, I meant 'its'. Yeh, there's only one way to parse it, but you don't find out which is the right way till the end of the sentence. (And don't ask me what 'it' is referring to there).

I think I agree with your general sentiment though. Special cases aren't special enough to justify completely breaking the regular rules. Both meanings should be written "it's". And like so many other things in English i

I have an easier rule: "it's" (with an apostrophe) is always a contraction for "it is", and is never possessive. Therefore, if you can substitute "it is" without changing the meaning, use the apostrophe in "it's". Otherwise, using an apostrophe would be wrong.

Hoist by thine own petard. By the way it's "ought to". See, we can all be pedantic grammar nazis too.

It's easy. And yet... so pointless. Language is a means of communication. For millennia, it had no agreed, defined structure. Then along comes Dr Johnson, the world's first grammar nazi, and spoiled things for everyone by stifling creativity. Shakespeare, a man who -- you know -- was and is, widely renowned for being quite good at English, used to make words up all the time, and bend others to his will. You'd have him shot, no doubt. Or his books burned for grammar crimes.

Did you understand what the summary meant? Yes, you did. So... shut up.

In the line of Shakespeare, here's a little fabricated sentence I just coughed up, with the help of a script [interface.org.nz] I wrote:

The Repanal's thiout lived in Reluggia, a very reonancid place with plenty of neute senables that wore large undatinks. The tounthude of Reluggia, luckily, spoke Iingic, telling the thiout that jenigircer left her fers in Resepro. It was an inverish statement, but a bit afty and plumboob, so the thiout believed the tounthude.

Duhhh. People don't speak like a textbook. I often use such words as "oughta", as in "oughta be tarred and feathered". It isn't ignorance, nor is it carelessness - I type it that way intentionally, because people all over America TALK THAT WAY. Ain't you glad that it's so? (Don't bother telling me that "Ain't ain't a word", I've heard it enough times, and it IS A WORD, commonly used by uneducated and educated people alike.)

I get that wrong all the time even though I'm fully aware that the possessive of "it" is "its". It's not that I'm bad at English, I just don't give a fuck about that particular apostrophe.

In fact, if it wasn't for the squiggly red lines I wouldn't care to correct my mistyping. I just can't stand those awful squiggles, it's like they're Satan rising up from ashes to haunt me with the terror of a thousand mad-libs...

One more abhorrent device created by Microsoft. Or at least made popular by them. I don't know where it started.

Uh, Duh. Hell, obviously.

I think they're a great idea really, I never believed in spellcheck because I've always had faith in my own spelling. However, my unwillingness to check for mistyping even though I know I have terrible accuracy is pure arrogance.

The only one that still gives me that reaction is when people turn "would've" into "would of" (or "should've into "should of", etc.) Most grammar and spelling errors are excusable, but not that one. People who can't get that right should not be allowed to type or write anything that will ever be seen by anyone but their family or English teacher.

Um, have you been paying attention? We have been moaning about this for the last year, some of us (me, maybe not you) wrote to our electoral candidates asking what they would do about it, and now the National government has suspended the enactment of the law for review.
Seems like moaning about it is all we can do, but at least it is having an effect!